Articles

Look Out – Here Comes the Train! Eminent Domain – A Beginner’s Guide

October 03, 2011

Whether your property is in the path of the coming California high speed rail project, a highway construction project or any other eminent domain project, understanding your legal rights is often essential to maximizing the amount you are paid for your land.

Consequently, your first line of defense is to contact an experienced eminent domain attorney to help you with the process.  We have several attorneys at Berliner Cohen’s San Jose and Merced offices with experience in this area.

Eminent Domain

A governmental entity, such as the United States, the State of California or a county or city government, school district, hospital district or other public agency, has the power to purchase privately-owned real estate for public use, with or without the property owner’s permission. 

The Fifth Amendment to the Constitution provides that "private property [may not] be taken for public use without just compensation." The Fourteenth Amendment added the requirement of just compensation to state and local government takings.  The hard part is determining exactly what “just compensation” is.

Getting Prepared Before a Lawsuit Is Filed

On many occasions, your first indication that a governmental entity is interested in your property comes by way of a letter or notice describing the project and informing you that you will be contacted in the near future.  That notice is often followed by contact from a “right of way agent” or another public entity representative who wants to talk to you about how much is going to be paid for the land they want to take.

These initial contacts are usually made long before any eminent domain lawsuit is filed.  The law requires that the agency have the “fair market value” of the property appraised, and that they make the landowner an offer to purchase the property based on that appraisal.

However, you need to keep in mind that the governmental entity’s ultimate goal is to make a deal with you on the amount of money to be paid for your property, and that they are operating on a budget.  As a result, it is not unusual for their opinion and yours as to the value of your property to be quite different.  They may also make larger deductions for “defects” (such as poor access or environmental contamination) than are warranted, and may also fail to take into account positive features of the property, as compared to others.

Furthermore, in addition to the basic value of the land you may be entitled to additional dollars beyond just the fair market value for the land being taken.  Without competent legal advice you may be leaving dollars on the table that you are entitled to.

In fact, in some situations, there may be steps you can take to increase the value of your land before eminent domain proceedings commence. 

Why Legal Counsel May Make You Money

Let’s assume a high speed rail line is going to be built through the middle of your farm, orchard, dairy or another type of property.  When the project is done:

  1. you could be left with property on either side of the rail line with no easy way to get to either side; and/or
  2. you will have to build a new irrigation system to service the half of the property that will be without water.  In short, your cost of doing business just went up because of this project. 

In cases like this, you may be entitled to “severance” damages in addition to the sum paid for the value of your property being taken.  The right of way agent you are talking to may or may not mention this to you. 

Alternatively, you may be able to negotiate with the public entity and get them to pay for an irrigation pipeline or an access point to get to the other side of the train tracks.  This can be a “win-win” situation: your problem is taken care of and the public entity saves money.

Consequently, you should consider hiring an attorney early on in the process to avoid leaving money on the table or failing to consider other options you might have.

Already Served With an Eminent Domain Lawsuit?

If you have been served with a lawsuit, then you probably haven’t been able to reach an agreement on the amount of money to be paid for your land, and the public entity does not want to wait any longer.  Just because a suit has been filed does not mean that negotiations are over.  You can still settle the case at any time. 

If you still don’t have an attorney at this point, don’t wait any longer!  As soon as you are served, get legal representation.  You only have a limited time to respond to any lawsuit.  If you fail to respond on time you can lose important legal rights and may effectively lose the entire case.

If a suit has been filed, Berliner Cohen can help you determine:

  1. an appropriate settlement for the fair value of your land
  2. any additional money you may be entitled to
  3. whether there are steps that can be taken to lessen the negative impacts on your property
  4. possible recovery of attorney fees expended in connection with the case if the public entity is not being reasonable in terms of the amount of compensation they are willing to pay
  5. whether it is possible to prevent the public entity from taking any of your property

In our experience, when a landowner represents himself in an eminent domain case, it is almost certain that he or she is leaving dollars on the table.  Eminent domain law is filled with a variety of statutes, procedures, and appraisal doctrines specific to these types of cases that can be difficult to navigate without help.  And if negotiations are unsuccessful, the issue of valuation is ultimately resolved in a jury trial, which of course requires knowledgeable and skilled counsel.

Consequently hiring experienced legal counsel is essential in an eminent domain case.

Please do not hesitate to call one of our experienced Berliner Cohen attorneys in San Jose (408) 286-5800 or Merced (209) 385-0700 if you have been contacted regarding the taking of your property by eminent domain. 

Andrew L. Faber
andrew.faber@berliner.com

Jeffrey S. Kaufman
jeffrey.kaufman@berliner.com

Laura Palazzolo
laura.palazzolo@berliner.com

Miles J. Dolinger
miles.dolinger@berliner.com

Forrest W. Hansen
forrest.hansen@berliner.com